So Kosovo and Serbia are now waiting for the International Court of Justice to rule on whether Kosovo is independent or not.
Except, not really.
Back in October 2008, the new Government of Serbia asked the ICJ to rule on whether Kosovo’s unilateral declaration of independence (“UDI”) in March 2008 was legal. This was clever in several ways. Internally, the new, relatively liberal and pro-Western Serbian governmnent shored up its flank against certain sorts of nationalist attack. Externally, it showed Serbia being a good, reasonable international citizen by submitting its problem to the highest body of international justice. And tactically, it invited the Court to rule on a narrow issue — was the UDI, done in that way at that time, legal? — rather than the much broader and more fraught question of whether Kosovar independence itself could be legal.
The case went before the Court for several days in December of 2009, with 25 countries submitting oral or written testimony. A decision is expected in summer.
But here’s the thing:the ICJ is very unlikely to deliver a clear opinion.
Think about it. On the broad issue of independence… well, a strong decision either way would be very, very disruptive. And the ICJ historically has not shown itself an agent of disruption. (Yes, there are a couple of exceptions. But they’re just that: exceptions.) An opinion saying clearly that Kosovo could or could not secede would have immediate knock-on effects in a dozen places around the world: Somaliland, Abkhazia, South Ossetia, North Cyprus, Transnistria, Nagorno-Karabakh, you name it. There aren’t a lot of issues more potentially explosive than ethnic self-determination, and that’s what Kosovo is all about.
It is theoretically possible that the Court could come up with a clear and strong opinion while trying to restrict it to the unique facts of this particular case. I don’t think that’s likely, but I don’t think it’s quite impossible either. Let’s say there’s one chance in twenty for that.
So what to expect? Well, I’m not an expert on the ICJ. But my best guess would be
1) a long, rambling, weasel-worded decision that does not arrive at a clear conclusion;
2) a statement that the UDI of March 2008 was defective on procedural grounds, without stating whether a UDI could ever be effective or not.
— I’d actually be sympathetic to (1), because I think the Court is in a really tough situation here. (2) would be stupid and dangerous. It would be telling the Kosovar Albanians to go back and start over after two+ years of handling their own affairs, which is unlikely to go down well. Meanwhile it would invite the Serbs to bring the same issue back to the Court again after the inevitable second UDI. So, no more than a delaying tactic, and a costly one. I hope they don’t go there.
I note in passing that of the fifteen judges on the Court, seven are from countries that have recognized Kosovo and eight are from countries that have not.
— Speaking of which: the current recognition-count for Kosovo stands at 65. That’s a bit more than I thought they’d get (I predicted “between 50 and 60”). New recognitions have slowed down to around one every month or two. If the ICJ opinion is very mushy, Kosovo might pick up a handful of fence-sitters this summer. If it’s strong against them — unlikely but possible — they might lose a few. It’s hard and embarrassing to reverse a recognition, though, so even with a strong opinion that number is not likely to be large.
There are 192 members in the UN, so Kosovo is now just past the one-third mark. The next landmark would be 92 recognitions, a majority. But I think that’s very unlikely for a long time to come.